Declaration of heirs: What is it? Deadlines and where to file it

The declaration of heirs is a fundamental document to validate the status of heir when there is no will or when the one that exists is not valid. In fact, without it, it is impossible to register the assets in your name. For this reason, here we would like to explain everything you need to know about it.

What is the declaration of heirs?

The declaration of heirs is a public document whose purpose is to determine who the heirs of a deceased person are and in what proportion they will inherit his or her assets, rights and obligations. It can be made through a notary, which is the most common way, or through the courts, when there are discrepancies in this respect.

In which cases is a declaration of heirs necessary?

This procedure is compulsory when the deceased person did not leave a living will through which to organise the distribution of his or her assets. In fact, this is why, in technical terms, it is known as a declaration of heirs abintestato. In order for the heirs to be able to take over the assets, it is necessary to obtain this document.

However, there are other situations in which the law also specifies that it is compulsory:

• The will is null or invalid because it does not conform to the law.
• The will does not include all of the deceased's assets or all of his heirs. For example, if he died without having registered the last property he bought or if he had a child out of wedlock who is not acknowledged.
• The heirs listed in the will are unable or unwilling to inherit.

You should be aware that if the deceased left a valid will that is in accordance with the law, a declaration is not necessary in order to inherit.

How and where is the declaration of heirs made?

In almost all cases, this procedure is carried out before a notary, so the first step is always to choose one. Any of the legitimate heirs can request the initiation of the procedure by simply presenting the following documents:

• Verbatim death certificate of the deceased: this is obtained from the Civil Registry Office.
• Certificate from the General Register of Last Will and Testament: this serves to prove that there is no will or that the existing one is not valid. You can apply for it 15 working days after the death at a Territorial Management Office of the Ministry of Justice or through its electronic office.
• DNI of the deceased.
• Family record book of the deceased: failing this, the birth certificates of the children are also considered valid.
• DNI of the heirs.

In addition, the procedure must be carried out with two witnesses who know the family of the deceased, but who are not entitled to the inheritance. With all of these documents and the fulfilment of the other requirements, the notary will draw up the deed and start the procedure.

After the legal deadline has expired, the notary will hand over the declaration of heirs to the applicant. The document will also state what proportion of the inheritance corresponds to each of them.

Is it possible to go to court?

It is only possible when there are doubts about who the heirs are or when there are conflicts between them. As we said before, it is possible that someone had a child out of wedlock and that, at the time of his death, his step-siblings refuse to recognise him as the legitimate heir.

In this type of case, the subject may have recourse to the courts to have a magistrate decide his or her status and how the distribution of the assets is to be carried out.

What do I have to do after the declaration of heirs?

Once this procedure has been completed, the procedure is the same as for any inheritance without a will. The first step consists of making an inventory and valuing the assets and debts of the deceased. We are talking, for example, about their habitual residence and other properties they may own, the money in their current account and the money deposited in investment or pension funds and their jewellery, but also any mortgage loans or personal loans they may have left unpaid and uninsured.

At this point, the heirs have to decide whether to accept the inheritance, which they can do purely and simply or with benefit of inventory, or to reject it. In this respect, you should be aware that it is not possible to accept one part of the inheritance and repudiate another, i.e. you can either accept it or reject it in its entirety.

Finally, the time will come to divide and adjudicate the inheritance among the heirs, for which it is necessary that there is an agreement or that a judicial procedure for the division of the inheritance is resolved. After this, all that remains is to liquidate the assets and pay the corresponding taxes. Fundamentally, inheritance and gift tax and municipal capital gains tax.

Have we answered all your questions? If you would like to know something more concrete and specific about the declaration of heirs in your personal case, do not hesitate to contact us. Contact us and one of our inheritance lawyers will be happy to advise you.